Even With Death Wish, Hayes Won't Be Executed Soon

Condemned serial killer Michael Ross told a Superior Court judge in September 2004 that he wanted to be executed.

In less than eight months, he was dead.

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Legal experts and attorneys, including one who represented Ross, say such a timeline is unlikely for Cheshire home invasion killer Steven Hayes, who wrote in a recent letter to the Courant that said he wants to waive his appeals and proceed to his execution.

Hayes' wishes may not even be possible in light of Connecticut's recent repeal of the death penalty.

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In the Sept. 29 letter, Hayes, 49, said he cannot live with the "cruel and unusual punishment" by prison staff at Northern Correctional Institution in Somers, where he has been on death row since December 2010.

Hayes' pending direct appeal, required by law, could be years away from resolution. Ross made his decision after 18 years on death row and a mandated appeal was rejected. He waived his rights to future discretionary appeals, in effect making his execution "voluntary."

As in the Ross case, Hayes' public defenders are likely to fight his efforts to be executed. And still-simmering issues related to what, if any, impact legislators' recent repeal of the death penalty has on existing death-row inmates could mean there will be no execution date for Hayes anytime soon — or at all.

"The question is whether his lawyers are even going to respect those wishes or question his mental state to make that decision," said veteran defense lawyer M.H. Reese Norris. "Even if he wants to waive his appeals, knowing his lawyers, they are going to challenge this. I imagine this is going to take a while."

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State law mandates an automatic sentence review of Hayes' case by the state Supreme Court. If the appeal is unsuccessful, Hayes could then reject the usual progression of state habeas corpus motions and federal appeals before a convict is put to death. It could not be determined late Friday whether Hayes has made any formal requests to waive his appeals.

Hayes and his accomplice, Joshua Komisarjevsky, await execution for killing Jennifer Hawke-Petit, and her daughters, Hayley, 17, and Michaela, 11, during a July 2007 home invasion in Cheshire.

This week, Michael Courtney, head of the state public defenders office's capital defense unit, which is handling Hayes' appeal, declined to comment on any recent discussions he and other attorneys have had with Hayes.

In the Michael Ross case, Judge Patrick J. Clifford questioned Ross in an October 2004 court hearing about his wish to forgo discretionary appeals and die by lethal injection. A month earlier, Ross' lawyer, T.R. Paulding, had sent the judge a letter outlining Ross' decision.

Ross received multiple death sentences for kidnapping and strangling four young women from eastern Connecticut in 1983 and 1984. He confessed to raping three of them. He admitted killing eight women in New York and Connecticut.

At the hearing, Clifford set an execution date — a move mandated by law — for January 2005, but public defenders intervened, and Ross' competency and the question of whether he was capable of making such a decision after spending 18 years on death row became the focus of months of vigorous court battles.

Defense attorney Hubert J. Santos, who assisted the public defenders in the Ross case, said that in evaluating a death-row inmate's competence to "volunteer" to be executed, the standard is higher than that used to determine if a defendant is competent to stand trial.

A court needed to decide if Ross fully understood what he was doing, and determine if his free will overcame the conditions under which he was being held on Connecticut's death row.

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"This could be a replay of that," Santos said.

In the end, Ross was ruled competent. He was put to death on May 13, 2005, the first convict executed in New England in 45 years.

As the Supreme Court ponders Hayes' direct appeal, it also will consider the constitutionality of the death penalty for death-row inmates in light of legislators' recent repeal of the law.

The new law abolishes the death penalty for future capital crimes committed in Connecticut. But lawmakers, with the horror of the Cheshire slayings still clearly on their minds, insisted that the measure keep inmates already on death row eligible for execution.

The Supreme Court set a Nov. 13 deadline for briefs on the constitutionality issue. The state will then have 60 days to respond. A hearing could be held sometime early next year.

Paulding said he thinks Hayes could have a tougher fight than Ross to get death in light of the repeal.

"I would have to believe it would be harder for this to occur now," Paulding said. "If I was a judge now and Steven Hayes said that to me, I would tell him I am going to defer any orders on this until the Supreme Court rules."

In his letter, Hayes said he would be making "a formal announcement" about his decision to go to "the death chamber" during "the 2nd week of October," but he did not say how he would announce it.

"I was willing to live with the intense grief from my past actions, and I still am willing," Hayes wrote. "However, I cannot live with the intense tourcher (sic), torment, harassment, and the resulting psychological trauma dished out by the Dept. of Corr. staff here at Northern. I was sentenced to death, not sentenced to tourcher (sic) and punitive treatment until death."

It is possible, too, that Hayes could change his mind. Defense lawyers say death-row inmates sometimes push for execution when they have lost hope in their appeals, but then on another day want to fight to stay alive.

In April 2005, Sedrick Cobb, sentenced to death for the 1989 rape and murder of 23-year-old Julia Ashe of Watertown, said he wanted to withdraw his appeals and proceed to his execution. The following month, Cobb changed his mind.

Inmates have that option, Paulding said, up until the very end.

In a private room near the prison's death chamber where Ross was about to be executed, Paulding said he recalled being grilled by officials just minutes before the lethal injection was administered on whether Ross still wanted to die.

"The state wanted to make very sure that he had not changed his mind," Paulding said. "And they were prepared to stop it if he had."

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